​US court tosses out mass surveillance case against NSA, AT&T

A longstanding case against the NSA – filed before the Snowden revelations were made public – has suffered a setback as the judge rules the plaintiff is unable to demonstrate she was placed under illegal surveillance.

In 2008, the Electronic
Frontier Foundation brought a case (Jewel v. NSA) on behalf of
five plaintiffs who alleged that the NSA and AT&T were
engaged in an "illegal and unconstitutional program of
dragnet communications surveillance conducted by the National
Security Agency and other Defendants in concert with major
telecommunications companies," according to the original
complaint.

The plaintiffs, who are described in the court document as
“ordinary Americans who are current or former subscribers to
AT&T’s telephone and/or Internet services,” initiated
their lawsuit after it was revealed by former AT&T technician
Mark Klein that the communications giant had a secure room where
customer data was being collected by government agents.

US District Judge Jeffrey White found that the lead plaintiff,
Carolyn Jewel, was unable to show that she was the victim of
surveillance. At the same time, White ruled that the claim must
be tossed out “on the basis that any possible defenses would
require impermissible disclosure of state secret
information.”

"The Court is persuaded that its decision is correct both
legally and factually and furthermore is required by the
interests of national security," said Judge White, of the
Northern District of California.

Although Klein’s allegations of a secret room at AT&T
generated some public attention, things got more interesting in
June 2013 when NSA whistleblower Edward Snowden handed over to
journalists thousands of classified documents, blowing the lid
off a global surveillance system involving the so-called Five
Eyes [The US, UK, Australia, Canada and New Zealand], as well as
the cooperation of multiple telecom firms.

Suddenly, it looked as though the plaintiffs had a very strong
case against the defendants, who included the most powerful
politicians in the country, including then-Vice President Dick
Cheney, then-President George W. Bush, and former NSA director
Michael Hayden, among others.

However, the court did not consider the raw evidence of mass
collection of domestic communications, which could have forced
the plaintiffs to have their long-awaited day in court.

Despite the setback for the plaintiffs, their lawyers have said
they will continue the battle.

“The judge's ruling only concerned Upstream Internet
surveillance, not the telephone records collection nor other mass
surveillance that are also at issue in Jewel,” Kurt Opsahl,
an EFF attorney, told Ars Technica, referring to the NSA’s
ability to collect customer data directly from fiber optic
cables.

“We will continue to fight to end NSA mass
surveillance,” he added.

The court cited a 2013 Supreme Court decision known as Clapper v.
Amnesty International where it was found that the plaintiffs
(Guantanamo Bay lawyers, for example) who believed their
communications were being intercepted due to a “speculative
chain of possibilities” was insufficient to establish
injury.

Noteworthy, the Jewel case follows a 2006 case (Hepting v.
AT&T), which the EFF also brought to the court. That case was
also tossed out in 2009, after Congress declared
telecommunication companies immune from such lawsuits.

One of the lawmakers that voted for the immunity was the
then-Senator from the state of Illinois, Barack Obama